Tuesday, February 7, 2012

Brilliant Ninth Circuit opinion strikes down Prop 8, but the serenade to marriage is unnecessary

In a 2-1 ruling, the Ninth Circuit in Perry v. Brown, has ruled that Prop 8 is an unconstitutional violation of federal equal protection law. The opinion explicitly does not address whether any ban on same-sex marriage is unconstitutional. Rather, it addresses only Prop 8 -- that is, only the elimination of the state constitutional right to marry announced by the California Supreme Court in In re Marriage Cases. The court relies on the US Supreme Court precedent in Romer v. Evans that the bare desire to harm a particular group is not a legitimate state interest.

Let me say at the outset that the national gay rights legal groups deserve the credit for urging this approach to Prop 8. The original litigation, as framed by the Olsen-Boies legal team, was a full-on challenge to the exclusion of same-sex couples from marriage. The national litigation groups did not think the time was right for such an attack. For example, GLAD initiated litigation almost three years ago challenging the constitutionality of the part of the Defense of Marriage Act that denies federal recognition to same-sex marriages. GLAD intentionally did not challenge all marriage bans. Although Olsen-Boies were not especially responsive to the wisdom of the experts in this area, they did ultimately see the value in at least including in their arguments a more Prop 8-focused challenge. Numerous amici in the Ninth Circuit urged the court to rule on this more narrow ground. Everyone assumes this case is headed for the US Supreme Court, where the vote of the author of the Romer opinion, Justice Kennedy, will be critical. Although his vote is by no means assured, the legal reasoning of the Ninth Circuit stands the best shot at an affirmance.

The court identified the issue as whether the People of California had a legitimate reason for taking away the label "marriage" from the relationships of same-sex couples while leaving such couples with the "domestic partnership" designation. And the critical backdrop of this issue is that same-sex couples do have access in California to the status of "domestic partnership" which grants all the legal consequences of marriage without the name.

The court found a close analogy to Romer, where the People of Colorado, through what was called Amendment 2, took away from lesbians and gay men the ability to be protected against discrimination under state and local laws; some Colorado cities had enacted those anti-discrimination measures, and Amendment 2 eliminated them. Again reiterating the narrow reasoning in this case, the court noted that the Colorado cities were not constitutionally required to pass such anti-discrimination measures for the Supreme Court to reason that those protections could not be removed, from gay people only, without a legitimate state interest other than disapproval of gay people. I particularly love that the Ninth Circuit also cited one of my favorite cases, US Dept. of Agriculture v. Moreno, which found unconstitutional Congress's removal from the food stamp program households of unrelated members, something the record showed stemmed solely from disapproval of hippie communes. The Constitution did not require Congress to give food stamps to anyone. But once it did, it could not remove that benefit only from certain groups without a legitimate reason for doing so.

So then all that was left was for the court to review the possible legitimate reasons. The court rejected the argument that Prop 8 would increase the likelihood of children being raised by their married biological parents, since the parentage laws of California extend to gay men and lesbians and Prop 8 did not change that. It also found implausible (at one point calling it lacking any "footing in reality") the argument that taking away the designation "marriage" from same-sex couples would cause heterosexuals to procreate more responsibly or would strengthen families headed by a man and a woman.

The court also rejected other arguments, including one that it would protect children from being taught in school that same-sex marriage is the same as "traditional" marriage. (For a terrific analysis of the campaign ads for Prop 8 about what children would learn in school, see this piece by Berkeley law professor Melissa Murray). The usual response to this from the pro-gay side is to say that allowing same-sex marriage has nothing to do with what is taught in school. And the Ninth Circuit says that as well. But it says something more that actually addresses the substance of the concerns of the opponents of gay rights. It's important enough to quote in full.

There is a limited sense in which the designation of 'marriage' to same-sex partnerships might alter the content of the lessons that schools choose to teach. Schools teach about the world as it is; when the world changes, lessons change. A shift in the State's marriage law may therefore affect the content of classroom instruction just as would the election of a new governor, the discovery of a new chemical element, or the adoption of a new law permitting no-fault divorce: students learn about these as empirical facts of the world around them. But to protest the teaching of these facts is little different from protesting their very existence; it is like opposing the election of a particulat governor on the ground that students would learn about his holding office, or opposing the legitimation of no-fault divorce because a teacher might allude to that fact if a course in societal structure were taught to graduating seniors. The prospect of children learning about the laws of the State and society's assessment of the legal rights of its members does not provide an independent reason for stripping members of a disfavored group of those rights they presently enjoy. (emphasis in original)

After disposing of other alleged reasons, the court concludes that the purpose of Prop 8 was disapproval of gay men and lesbian as a class and a desire to withhold the official designation and societal approval of the word "marriage." "By withdrawing the availabilty of the recognized designation of 'marriage,' Proposition 8 enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class." Prop 8 does not change the legal consequences available to same-sex couples, which attach to domestic partnerships, but it "dramatically reduces the societal standing of gays and lesbians and diminishes their dignity."

The dissenting judge essentially applied the most deferential form of rational basis review available. He concluded that animosity and moral disapproval could motivate Prop 8 as long as there was some other rational reason behind it. He also placed on the challengers the burden of negating every conceivable rational basis for the law. Ultimately, he concluded that "the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting." Those assumptions might be wrong, he wrote, but that they are arguable is sufficient.

All that's left is for me to offer a complaint I've made frequently in these posts. The equality argument underlying this ruling is unassailable. It is, of course, true that the voters of California knew there was a legal status called domestic partnership available to same-sex couples and knew that status would remain. The majority is right on target when it asserts the the only reason to deny the name "marriage" to a same-sex relationship is to confer a status of lesser dignity and worth on lesbians and gay men.

But such an argument does not require glorifying marriage. It will be oft-quoted that the majority opinion references Groucho Marx, Shakespeare, Lincoln, and Marilyn Monroe in conveying the meaning of marriage. (See page 38 of the opinion through the above link). "The designation of 'marriage,'" the court writes, "is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered it." Marriage finds its place in poetry, to be sure. But commitment exists in so many relationships, often those that endure longer than marriages. The more marriage is glorified, by marriage equality opponents and supporters alike, the less able we are to see those commitments all around us and to honor them and confer upon them appropriate legal consequences. For that problem, today's ruling solves nothing.

I am not sure what either of you is saying exactly. As a free society, we allow people to procreate. A lesbian or gay men may use assisted reproduction, but any efforts to ban that based on a person's sexual orientation is such an extreme notion that no one has seriously proposed it! The state does not judge the (overwhelmingly heterosexual) people who utilize the doctors and facilities involved in assisted reproduction. And of course it would be ineffective anyway, as a doctor is unnecessary to assisted conception using donor semen.

Please don't misinterpret my comment. It is not biologically possible for two people of the same gender to "procreate" in the strictest sense of the word, so that was what I was (perhaps pedantically) responding to. I liked the perspective that this piece had to offer. Please keep up the good work!

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About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.